DeVito South Beach tip scandal

On a cool weeknight in February, DeVito restaurant on South Beach is humming. Beneath giant chandeliers of glowing glass, waitress Angela Suarez skips from the kitchen counter to a dozen different white-marble tables, carrying heaps of porcini gnocchi and pecorino cheese pasta.

Though the perky server is smiling brightly, inside she's boiling with rage. She recalls working about 60 hours the prior week, but the paycheck she picked up earlier showed only 38. So after midnight, when business has died down, she sneaks upstairs to a computer near the manager's office and logs in. Sure enough, the record confirms she's been stiffed, she claims. And part of her tips have been siphoned to a sommelier.

Last month, Suarez, who is using a pseudonym because she fears retribution from a new employer, sued DeVito for cheating her out of tips and wages. In just the past year, 11 others who worked for the Ocean Drive hot spot have done the same. All have received confidential settlements.

Yet the restaurant claims innocence. "None of these few ex-employees reported any discrepancy to our offices at any time prior to making a legal claim," says David Manero, who owns the eatery with famed actor and director Danny DeVito. "We stand by our hourly timekeeping system, which is industry standard."

DeVito is one of at least five high-end Miami-Dade restaurants — including Da Vittorio in Coral Gables as well as Sushi Samba and Quattro on Lincoln Road — that have been sued in the past two years for stealing employees' hard-earned cash. Three of the cases, including those involving Sushi Samba and Da Vittorio, were recently settled. Others are still in process, but the restaurants have denied the claims.

Of course, the Magic City's eateries are not alone. In 2008, Starbucks lost a $105 million lawsuit after baristas in California complained their tips were being improperly shared with managers. And this past July, two employees sued celebrity chef Mario Batali's Manhattan restaurant, Babbo, for paying subminimum wage and skimming tips. Also in New York, famous restaurateur David Bouley's Japonais restaurant was hit with similar charges last September.

"Wage violations are a regular and recurring type of complaint that we get," says Will Garnitz, district director for the U.S. Department of Labor's Wage and Hour Division. He says his South Florida office caught scores of restaurants and bars in the Miami area shortchanging employees of more than $750,000 in unpaid wages last year.

"Miami is one of the most challenging places for enforcing federal wage law," he says. "Because this is an immigrant community, a lot of employers are confused about the law or have a different attitude about it." Regardless, Garnitz says, many Miami employers pay their staff completely in tips, keep part of those tips, or simply don't pay employees for their hours — all of which are against the law.

The case of a 50-year-old ex-bartender and divorced father of three at Tarpon Bend Food & Tackle, a nautically themed eatery in Coral Gables, exemplifies the kind of claim that often reaches the feds. The bartender says restaurant managers routinely doctored his hours in order to hide overtime pay. And after nearly four years of employment, he was fired this past March and replaced by two young, attractive women.

"For the last five months of my employment, I was harassed [by a manager]," he wrote in an age discrimination complaint to the U.S. Equal Employment Opportunity Commission. "On a daily basis, I heard comments such as, 'You are old enough to be my father' [and] 'We can't have you at the bar without another woman.'"

The bartender, who asked for anonymity, also filed a complaint in April with the U.S. Department of Labor for an estimated $7,000 of unpaid wages. The restaurant recently sent him a check for $137.12. According to a receipt, it was to cover 1,212 hours worked at 4 cents per hour plus $99.99 more for an unspecified reason. The bartender considers it a ploy to get him to waive his right to litigation.

Wayne Eldred, general manager at Tarpon Bend, denies firing the bartender and calls his claims "frivolous." But this past April, state authorities determined the bartender had been "discharged because the employer did not find the claimant to be suited to the work." He is now receiving unemployment benefits.

The local lightning rod for this type of case is Coral Gables attorney Lawrence McGuinness. He is representing Suarez, who says she was fired shortly after complaining about the wage problems. And he won settlements for the 11 others from DeVito. In the past 24 months, he has also sued the following restaurants:

• Quattro Gastronomia Italiana on Lincoln Road in Miami Beach: In August 2008, four former servers sued Quattro for unpaid hours and tip skimming. The case is still ongoing. Ernesto Gonzalez, CFO for KNR Restaurants, declined to comment.

• Da Vittorio on Giralda Avenue in the Gables: Former server Valter Machado sued the restaurant in October 2009 for tip skimming, unpaid wages, and "illegal tip deductions." Court documents show he settled for $2,450 plus $9,992 in attorney's fees this past May.

• Sushi Samba on Lincoln Road in Miami Beach: Former servers Dean Mitchell and Yasuko Mitchell sued the sushi joint in November 2008 for unpaid wages and tip skimming. A Miami-Dade court initially awarded them nearly $55,000, but that award was vacated after the couple settled out of court in February for an unknown amount.

"Miami is the worst city in the U.S. when it comes to wage theft," McGuinness says. "So many employers here think that they can just get away with not paying their employees."

The DeVito lawsuits, one filed in July 2009 and the other this past August, involve the most plaintiffs and the most detailed claims. New Times interviewed three of the servers, including Suarez, who have left the Ocean Drive restaurant. All three describe a similar system by which they claim to have been fleeced.

"They were taking $20 or $40 out of our tips every day," says a 29-year-old waiter who worked at DeVito for more than a year. "They absolutely knew what they were doing." He says the house illegally took 1.5 percent of all tips to help pay hostesses and other employees who should have been paid entirely by DeVito.

Some of the tips went to a sommelier who was already making a manager's salary of $70,000 per year, Suarez says. The sommelier even got a cut on nights when he wasn't working, she claims. And the restaurant often kept tip money.

The eatery also charged servers a "tip deduction" that would show up on reports printed out at the end of each shift, according to the lawsuits. This sent a portion of credit card tips to the house. Another plaintiff, a waiter who's married and in his early 30s, estimates the fee totaled $73,000 for all employees over the course of a year.

Manero, DeVito's co-owner, says he has "no knowledge" of any such tip fees or tip sharing.

The waiters' biggest gripe, however, is that the restaurant routinely undercounted their hours on paychecks, which cost them each thousands. "They think that the servers are making good money, so they can take our money like it's no big deal," says one of the allegedly shafted waiters. "But I'm married. I've got two kids. I turn 30 next month. This is my profession. These dirtbags can't just take a huge percentage of my wages every day. It adds up.

"We complained all the time. They just told us to quit."

DeVito this past spring paid the 11 former employees to shut up and drop the suits. One plaintiff says the restaurant gave him $6,000. All in all, he estimates DeVito has paid out $140,000 so far. "It wasn't worth it to go on [with the lawsuit]," he says.

But for Suarez, cash can't compensate. "They don't have enough money to make me drop the lawsuit," she says of DeVito. "I worked for them for three years, but when they fired me, the manager wouldn't even look in my face."